Sotomayor and the Permanent Constitution

This exchange between Senator Graham and Judge Sotomayor has raised some hackles:

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the
sense that it's lasted 200 years. The Constitution has not changed
except by amendment. It is a process -- an amendment process that is
set forth in the document.

It doesn't live other than to be timeless by the expression of what
it says. What changes is society. What changes is what facts a judge
may get presented...

I would fully expect that ivory tower folks would have a conniption fit over that response, but I was surprised to read this scathing comment from Jan Crawford Greenburg, generally one of the most astute and evenhanded of the Court commentators.

That's nonsensical. Obviously, the name of the game is confirmation,
but if you have 60 votes, why not explain your views on the role of the
courts and liberal judicial philosophy? Justice Breyer wrote an entire
book on this! He and Scalia have gone on the road to debate whether the
Constitution is living or dead (I moderated one of their debates and
just tried to stay out of the way). This is an easy one! It shouldn't
be that difficult to knock it out of the park.

I disagree. The statement makes perfect sense, and she did hit it out of the park. She just didn't hit it in the direction many expected. The answer responds directly to the question, and it is a clear, unequivocal repudiation of the "living Constitution" nonsense. It appears that Judge Sotomayor recognizes a truth that has escaped many judges and nearly all law professors.

When Chief Justice Marshall laid out the basis for judicial review of statutes in Marbury v. Madison, 5 U.S. 137 (1803), he wrote this about the nature of the Constitution (at pp. 176-177, emphasis added):

That the people have an original right to
establish for their future government such principles as, in their
opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this
original right is a very great exertion; nor can it nor ought it to be
frequently repeated. The principles, therefore, so established are
deemed fundamental. And as the authority from which they proceed, is
supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns
to different departments their respective powers. It may either stop
here or establish certain limits not to be transcended by those
departments.

The Government of the United States is of the latter description.
The powers of the Legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the Constitution is written.
To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may at any time be
passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished if those
limits do not confine the persons on whom they are imposed, and if acts
prohibited and acts allowed are of equal obligation. It
is a proposition too plain to be contested that the Constitution
controls any legislative act repugnant to it, or that the Legislature
may alter the Constitution by an ordinary act.

Maintaining the Constitution as permanent unless and until the people change it through the process in Article V is the whole basis for the legitimacy of judicial review in the first place. For a court to change the meaning of the Constitution through case law is every bit as much a violation of the people's exclusive constitution-making power as a legislature changing it by "an ordinary act." The "living Constitution" judges who are most often lauded as great defenders of the Constitution are in fact the worst violators of it. Every decision striking down a statute for supposedly violating a provision of the Constitution, when the statute is fully compatible with that provision as understood when it was adopted, is a violation of the people's "original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness...."

If the Constitution is not permanent, if the power to change it is not reserved exclusively to the people through the amendment process, then there is no reason to say that the courts have any greater right to change it than the legislature. Indeed, as unelected officials not responsible to the people, they have less.

The permanent Constitution is inseparable from the legitimacy of judicial review under Marbury. Judge Sotomayor's response indicates she understands that. The chorus of criticism indicates that the critics do not.

What about Greenburg's comment that "the name of the game is confirmation." Does she mean to imply that Judge Sotomayor doesn't really believe this, is just saying it to get confirmed, and then she will turn around and embrace the "living Constitution" view with all the result-oriented judicial activism* that implies? That would be deeply cynical. I'm not inclined to assume such dishonesty without some strong evidence.

* The chorus of critics is also wrong that "judicial activism" is an empty term. While it is true that many people misuse it simply to disparage opinions they disagree with, the term does express an important concept when it is used properly. After all, the fact that lefty commenters on blogs call everyone they disagree with a "fascist" does not mean that we must purge that term from our vocabulary or that we should fail to identify a real fascist when we see one. Why should we stop using the term "judicial activism" where it is appropriate to identify judges who would usurp to themselves the amendment power that the Constitution reserves to the people through the democratic process?

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1 Comment

First of all, Sotomayor's response is brutal. It's tautological and trite. "It doesn't live other than to be timeless by the expression of what it says." Now I get that it's a hearing and the question wasn't so hot (was it a normative question or a question of fact?), but her answer sounds more like a beauty pageant contestant's answer than a SCOTUS nominee's.

Second of all, does anyone really believe that Sotomayor actually believes that the Consitution shouldn't change with the times?

The reality is that the Constitution has changed. And we're not going back from a lot of that (e.g., Gideon is not going anywhere). The question is whether the Constitution should simply mean whatever suits the "nine-headed Caesar's" fancy.